"On March 23, the U.S. Supreme Court ruled in Kumho Tire Co. v. Carmichael, No. 97-1709, that all types of expert evidence are subject to the relevance and reliability 'gatekeeping' function that the Supreme Court had articulated with respect to scientific evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court further held that trial judges have substantial discretion or 'considerable leeway' to determine how to evaluate relevance and reliability and to make a determination on whether to admit the expert evidence.

While this decision will make it more difficult when judges are hostile to the type of expert testimony being offered by plaintiffs, there were some helpful aspects to the Court's opinion that lawyers for plaintiffs should know and emphasize:

• The Court rejected arguments that all, or even one, of the four Daubert factors (testing, peer review, error rates, and scientific acceptability) must be satisfied for the testimony to be admissible, noting that even in scientific evidence cases the Daubert factors 'do not all necessarily apply';

• The Court endorsed the idea that expert testimony from reliable fields of study that conforms with the standards used in that discipline should be admissible (In doing so, the Court was allowing trial judges to exclude testimony that uses techniques or methods not commonly practiced within that field of expertise or testimony based on such claims of expertise as astrology);

• Although the Court rejected the tire-failure expert's testimony in Kumho, the Court specifically noted that expert conclusions based on methodologies consistent with the prevailing norms of that discipline would be admissible when drawn 'from a set of observations based on extensive and specialized experience;' and,

• The Court told trial judges that the discretionary authority recognized in the opinion allows judges 'to avoid unnecessary 'reliability' proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted.' Thus, the Court has also put judges and defendants on notice that experts who have traditionally and properly testified in garden-variety cases should not be subject to Daubert objections or expensive hearings."

• The Daubert 'gatekeeping' obligation applies not only to 'scientific' testimony, but to all expert testimony. Rule 702 does not distinguish between 'scientific' knowledge and 'technical' or 'other specialized' knowledge, but makes clear that any such knowledge might become the subject of expert testimony.
  
  
• A trial judge determining the admissibility of an engineering expert's testimony may consider one or more of the specific Daubert factors. The emphasis on the word 'may' reflects Daubert's description of the Rule 702 inquiry as 'a flexible one.' 509 U.S., at 594. The Daubert factors do not constitute a definitive checklist or test, id., at 593, and the gatekeeping inquiry must be tied to the particular facts, id., at 591.
  
  
• The court of appeals must apply an abust-of-discretion standard when it reviews the trial court's decision to admit or exclude expert testimony. General Electric Co. v. Joiner, 522 U.S. 136, 138-139."
  
  [Forensic Sciences Foundation, Inc., Academy News, March 1999:9]

   

  home * e-mail Dr. Bursztajn * more about Dr. Bursztajn *
  What's New? * other web sites